R v Bajwa, 2011 ABQB 669

Court of Queen ’ s Bench of Alberta Citation: R v Bajwa, 2011 ABQB 669 Date: 20111103 Docket: 100719913Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Steven Singh Bajwa Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________ Introduction [ 1 ] After a trial the Accused was convicted of three counts: 1. unlawfully trafficking in cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19;

2. unlawfully having in his possession Canadian currency of a value not exceeding $5,000, knowing all or part of it was obtained by the commission kind of offence punishable by indictment contrary to

section 355 (

b) of the Criminal Code of Canada ; 3. having in his possession a weapon to wit a baton for the purpose dangerous to the public peace or for the purpose of committing an offence contrary to section 88(1) of the Criminal Code of Canada . [ 2 ] Counsel for the defence applied for a stay of the charges alleging an abuse of process caused by police entrapment. Evidence [ 3 ] The relevant evidence from trial is as follows. Sgt. Kingma is a City of Edmonton Police Officer. At the time of these offences (June 2010) he was running a project called “ Project Griffin ” .

The purpose of this project was to target “ dial-a-doper ” drug dealers. To assist him he was using information from the Edmonton City Police Drug Undercover Street Team. These are a group of officers who receive information primarily targeting street level drug dealing. [ 4 ] On or about June 15, 2010 Sgt. Kingma received information from Cst. Klassen of the Edmonton City Police concerning a cell phone number that the police believed was being used to traffick drugs. [ 5 ] Sgt. Kingma then instructed Cst. Dvorak to call this number and arrange to buy $200 worth of cocaine. Sgt.

Kingma testified that they did not know whose telephone number it was nor did he have any further information on the case. He also testified that they did not try to verify who the telephone belonged to. [ 6 ] Cst. Dvorak testified that on June 15, 2010 she was assigned as an undercover agent to work with Sgt. Kingma. She was given the telephone number and instructed to complete a cocaine transaction. [ 7 ] She called the number in question which went to automatic answering. She left a message indicating that she ( “ Trish ” ) wanted to purchase and a call back number.

At 20:08 on June 15, 2010 she received a call from a private number. She recalls that the caller was a male with a slight accent. He asked “ who are you ” . She identified herself as Trish and told him that she had got his number from John (a fictitious person). She then asked “ is this a green phone or a white phone? ” . The caller said: “ I have weed ” . She responded: “ I want white ” . He responded “ girls ” . [ 8 ] Cst. Dvorak explained that the terms “ green phone or white phone ” refers to whether or not the phone is used to sell marihuana (green) or cocaine (white).

The word “ girls ” refers to soft cocaine. [ 9 ] The conversation continued with Cst. Dvorak asking the man if he could make it to the north end where she was. He replied: “ no ..south side ” . She told him she had $200 and would meet him in north Edmonton. He offered a location of “ 34 Street and 43 Avenue ” . She told him that she would need a car and that she would be on her way. [ 10 ] At 20:16 she received a call from someone she believed was the same male. He told her to meet at 75 Street and 82 Avenue in the McDonald ’ s parking lot.

He told her to call him when she was 10 minutes away and that he would be driving an SUV.

[11] At 20:28 Cst. Dvorak arrived at the location and telephoned the number again. It was the same male voice and he told her hewould call her. [12] She then parked her vehicle and at 20:33 got a call. The male said he was two minutes away and was driving an SUV. At20:40, a Suzuki SUV pulled in beside her. A tall male in a baseball cap was driving. She left the vehicle, and he waved her over. Sheentered the passenger seat and he gave her seven half gram pieces of cocaine and then a small piece out of a clear bag which containedseveral other smaller pieces inside.

He put the drugs into her hand and she gave him the $200. They talked for a while, then she left andwalked around his car. [13] At that point the tactical team arrived and arrested the Accused. [14] Cst. Dvorak acknowledged that she did not know who she was calling at the time she called the telephone number and shehad no other information relating to the number or the Accused.

The Law [15] Since the Accused has made an application for a stay of the proceedings the burden of proof is on the Accused to show on abalance of probabilities that the conduct of the EPS amounted to an abuse of process in the form of entrapment. [16] The R v Mack, (SCC), [1988] 2 S.C.R. 903 decision of the Supreme Court is the leading case in Canada forthe test for entrapment. At pp. 964-965, Justice Lamer sets out the two principal branches of the test: ... there is entrapment when, (

a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that thisperson is already engaged in criminal activity or pursuant to a bona fide inquiry; (

b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing anopportunity and induce the commission of an offence. [17] The R. v. Barnes, (SCC), [1991] 1 S.C.R. 449 decision of the Supreme Court reaffirmed the test in Mack,but clarified it by outlining the “bona fide inquiry” exception to the general rule against entrapment. At p. 463 of that decision, JusticeLamer wrote that: . . . An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonablysuspected that criminal activity is occurring.

When such a location is defined with sufficient precision, the police may present any personassociated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of abona fide inquiry. [18] Justice Lamer defined random virtue-testing as the opposite of a bona fide investigation at p. 463 as follows: Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence withouta reasonable suspicion that: (

a) the person is already engaged in the particular criminal activity, or

(

b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring. [19] Reasonable suspicion is a lower standard than “reasonable and probable grounds,” but a higher standard than mere suspicion.The jurisprudence on this was summarized by Justice Hill in the case of R v Williams, 2010 ONSC 1698 at para. 44, a portion of which Iwill reproduce here: . . .

(3) The reasonable suspicion standard has been described as not “unduly onerous” (R. v. Mack, at 554) and “necessarily ...low”: R. v.Cahill (1992), (BC CA), 13 C.R. (4th) 327 (B.C.C.A.) at 339. It is an intermediate standard: R v. A.M. (2008), 2008SCC 19 , 230 C.C.C. (3d) 377 (S.C.C.) at para. 60, 82. Because reasonable suspicion “is a less demanding standard thanreasonable grounds” (R. v. Bennett (1996), (QC CA), 108 C.C.C. (3d) 175 (Que. C.A.) at 183), it has been correctlyobserved “that a reasonable suspicion will much more frequently be wrong than will be reasonable and probable grounds”: T.

Quigley,“Brief Investigative Detentions: A Critique of R. v. Simpson” (2004) 41 Alta. L. Rev. 935, at para. 20.

(5) While a reasonable suspicion involves lesser probability than reasonable and probable grounds, it cannot be limited to a hunch orfeeling without extrinsic evidence: R. v. Barnes, at para. 16. Accordingly, the standard is not a hunch based on intuition gained byexperience (R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59 at para. 30) or a well-educated guess: R. v. A.M., at para. 91. Anofficer's subjective belief must be accompanied by objectively verifiable evidence supporting reasonable suspicion: R. v. A.M., at para.42, 80.

(6) What is reasonable “by its very nature, must be assessed in context”: R. v. Jackpine (2006), 2006 SCC 15 , 207 C.C.C.(3d) 225 (S.C.C.) at 243. The totality of circumstances viewed as a whole must be considered: R. v. Jacques, (SCC),[1996] 3 S.C.R. 312 at para. 25. Reasonable suspicion “is dependent on both the content of the information provided to the police and itsdegree of reliability”: R. v. Lal [(1998), (BC CA), 130 C.C.C. (3d) 413 (B.C.C.A.)], at para. 30; R. v.

Bennett, at 181.While the existence of reasonable suspicion is very much a fact-specific inquiry, “it is important that the test laid out in Mack not beapplied in a mechanistic fashion. If it is, there is a danger that sight will be lost of the rationale for the defence of entrapment that hasbeen elucidated in that decision”: R. v. Benedetti, [[1997] A.J. No. 536 (C.A.)] at para. 19. Issues [20] The following questions have to be decided: 1. Did the police give the Accused an opportunity to commit a crime? 2. Did the police action fall into one of the two legitimate exceptions to entrapment: (

a) Did the police have reasonable suspicion that the Accused was already engaged in criminal activity, or (

b) Did the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity isoccurring? 3. Notwithstanding falling into one of the exceptions, did the police go beyond providing an opportunity and induce the commissionof an offence?

Positions of the Parties (

a) Position of the Defence [ 21 ] The Defence argues that this is a clear case of police entrapment that can only be remedied by a stay of proceedings. It submits that the EPS did not have a reasonable suspicion to believe the Accused was already engaged in a criminal activity, nor did they engage in a bona fide investigation, or focus on a sufficiently precise geographic area. [ 22 ] Further the Defence submits that even if the police had a reasonable suspicion they went beyond providing an opportunity and in fact induced the commission of an offence. (

b) Position of the Crown [ 23 ] The Crown submits that the Defence failed to call evidence on the issue of entrapment as required. It reminds the Court that the onus is on the Accused to prove entrapment. [ 24 ] The Crown also submits that the undercover officer could rely upon the collective police knowledge which would create a reasonable suspicion. [ 25 ] In addition the Crown submits that the evidence in this case is that the police were operating in the course of a bona fide investigation as the cell phone could be considered a location. Analysis 1.

Did the authorities provide the Accused with an opportunity to commit an offence? [ 26 ] The answer to this question is yes. As a result of the calls between the Accused and Cst. Dvorak a meeting was set up and the Accused sold drugs to the officer. 2.

Did the police officer do this without acting on a reasonable suspicion that this person was already engaged in criminal activity or pursuant to a bona fide police investigation? [ 27 ] I find that before the telephone call was made the collective police knowledge was insufficient for reasonable suspicion that this particular Accused was already engaged in criminal activity. [ 28 ] However I find that during the call the police furthered their investigation of this “ dial-a-doper ” operation and developed a reasonable suspicion that the Accused was personally involved in drug trafficking. [ 29 ] The analysis from the R v Imoro, 2010 ONCA 122 is useful.

In that case the Court found that there was no reasonable suspicion at the beginning of the police officer ’ s contact with the accused but that they developed during the course of that contact.

[ 30 ] In that case the Court found that initially the police officer was legitimately investigating a tip. He met the suspect and asked the suspect “ can you hook me up ” . The Court determined at that point what the police officer was really asking was “ was he a drug dealer ” .

This was simply a step in the police officer ’ s investigation of an anonymous tip. [ 31 ] However later the police officer observed a drug transaction between the suspect and another man and at that point the police officer had reasonable suspicion before the police officer provided the accused with the opportunity to sell the police officer drugs. [ 32 ] Similarly in this case the police officer was investigating a tip. The conversation between Cst. Dvorak and the Accused before she asked him for drugs was as follows. He called and asked her who she was?

She identified herself as Trish and that she had gotten the number from John. She then asked if it was just a green phone or white phone? At that point the Accused said “ I have weed ” . Immediately after that Cst. Dvorak asked for white and a transaction is arranged. [ 33 ] I find that when the Accused offered drugs to Cst. Dvorak with the words “ I have weed ” this created a reasonable suspicion. It was after this point that Cst.

Dvorak provided the Accused with the opportunity to commit an offence. [ 34 ] This sequence of events is distinguishable from the cases of R v Swan , 2009 BCCA 142 and R v Gladue , [2011] A.J. No. 411 . In R v Swan the accused answered affirmatively to a question “ are you working ” . Similarly in R v Gladue the accused answered affirmatively to a question “ are you working ” or “ are you rolling ” ? The Courts found that the wording of these type of questions did not create reasonable suspicion as they simply were too imprecise and vague.

In this case we have the Accused acknowledging he has drugs and by inference offering to sell them. That created a reasonable suspicion. Conclusion [ 35 ] I find that on the basis of this evidence the undercover police officer had reasonable suspicion at the point in time she offered the Accused the opportunity to sell drugs. [ 36 ] I also find that the discussion between the undercover police officer and the Accused concerning location was not an inducement. By that point the transaction had already been agreed upon. [ 37 ] In

summary I find that the Accused has not established entrapment. The application for a stay of proceedings is denied. Heard on the 28 th , 29 th , and 30 th days of September, 2011. Dated at the City of Edmonton, Alberta this 3 rd day of November, 2011.

J.J. Gill J.C.Q.B.A. Appearances: Patrick Cashman Public Prosecution Service of Canada for the Crown Daryl J. Royer for the Accused